IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GREGORY S. WILLIS, 

CASE NO. 2:11-CV-1056

Petitioner, JUDGE GRAHAM

MAGISTRATE JUDGE KING

v. 

TIMOTHY BRUNSMAN, WARDEN, 

Respondent.

OPINION AND ORDER

On July 2, 2012, the Magistrate Judge issued a Report and Recommendation recommending

that Respondent’s Motion to Dismiss (Doc. 5) be granted and that the petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 be dismissed as barred by the one-year statute of limitations

under 28 U.S.C. § 2244(d). This matter is before the Court on Petitioner’s Objections to the Report

and Recommendation and request for a certificate of appealability (Doc. 11), Respondent’s Reply

(Doc. 13), and Petitioner’s Amended Response (Docs. 15, 16). For the reasons that follow,

Petitioner’s objections are OVERRULED. Petitioner’s request for an evidentiary hearing is

DENIED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is

hereby DISMISSED. Moreover, Petitioner’s request for a certificate of appealability is DENIED.

Petitioner objects to the Magistrate Judge’s recommendation that his habeas corpus petition

be dismissed as untimely. According to Petitioner, the statute of limitations has not yet begun to run

or, alternatively, has been tolled under 28 U.S.C. § 2244(d)(2)1

 since April 9, 2009, i.e., the last date

1

28 U.S.C. § 2244(d)(2) provides: 

The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any

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on which he could have timely appealed the trial court’s March 10, 2009, dismissal of his petition

for post conviction relief and the date on which he first sought an extension of time in which to file

an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Petitioner contends that

his motion for an extension of time to file a Rule 26(B) application was “properly filed” within the

meaning of 28 U.S.C. § 2244(d)(2) and Ohio’s Appellate Rules. Because the state appellate court

never expressly denied that motion, Petitioner argues, the motion remains pending and continues

to toll the running of the statute of limitations. Petitioner also argues that an October 22, 2009, filing

by him with the Ohio Tenth District Court of Appeals constituted a properly filed Rule 26(B)

application but that the clerk of that court improperly construed the submission as merely a letter;

this action, Petitioner contends, is therefore timely under 28 U.S.C. 2244(d)(1)(B).2 Finally,

Petitioner insists that he acted diligently in pursuing his claims and that the statute of limitations

should therefore be equitably tolled based on the state courts’ errors and because he was induced

or tricked into allowing his rights to lapse.

In response, Respondent argues that Petitioner’s motions for extension of time did not serve

to toll the running of the statute of limitations under the plain language of 28 U.S.C. § 2244(d)(2)

because those motions were not “properly filed application[s] for State post-conviction or other

collateral review.” Respondent also argues that Petitioner’s April 16, 2010, delayed Rule 26(B)

application likewise did not toll the running of the statute of limitations because the state appellate

period of limitation under this section. 

2

 28 U.S.C. § 2244(d)(1)(B) provides that the statute of limitations begins to run from

“the date on which the impediment to filing an application [for a federal writ of habeas corpus]

created by State action in violation of the Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State action[.]” 

2

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court denied the application as untimely. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).

The parties do not refer to, and this Court has been unable to locate, any authority on the

issue of whether a request for an extension of time to file a post conviction or collateral action –

whether that request be granted or denied – is the equivalent of “a properly filed application for State

post-conviction or other collateral review” under § 2244(d)(2) so as to toll the running of the statute

of limitations. This Court need not, however, resolve that issue here. 

As discussed by the Magistrate Judge, the statute of limitations began to run in this case on

April 9, 2009, i.e. the date that Petitioner could have timely appealed the trial court’s March 10,

2009, denial of his post conviction petition. Even assuming that Petitioner’s April 9, 2009, motion

for an extension to June 6, 2009, in which to file that appeal tolled the running of the statute of

limitations, the tolling would not have lasted longer than 59 days, i.e., the period requested. See

Exhibit 19 to Motion to Dismiss.3

 The statute of limitations therefore expired on June 7, 2010. 

Petitioner nevertheless waited until November 2, 2011, to file his habeas corpus petition, which was

signed by him on October 17, 2011.

Petitioner complains that he did not receive notice of the trial court’s denial of his petition

for post conviction relief until March 20, 2009, because his legal mail was frequently sent to the

wrong address after his transfer to a different institution on February 3, 2009. Petitioner argues that

the statute of limitations therefore did not begin to run until May 16, 2009. See Petitioner’s

Response, at 3. 

Even accepting this argument, a petition for a federal writ of habeas corpus that was executed

3

 On June 3, 2009, however, Petitioner sought another extension of time – to July 9,

2009 – in which to file the Rule 26(B) application. Exhibit 20 to Motion to Dismiss. That request

was denied by the state court of appeals. Exhibit 21 to Motion to Dismiss.

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on October 17, 2011, and filed on November 2, 2011, was not timely. Moreover, Miller v. Collins,

305 F.3d 491 (6th Cir. 2002), an equitable tolling case upon which Petitioner relies, does not support

Petitioner’s position. The petitioner in Miller did not learn of a decision denying the direct appeal

for approximately six months, but then acted diligently to pursue his rights in habeas corpus. Such

are not the circumstances here. 

Petitioner has sat on his rights at almost every turn. He failed to file a timely appeal of the

appellate court’s January 27, 2009 decision denying his direct appeal. He then waited more than

nineteen months, until September 13, 2010, before he filed a motion for delayed appeal to the Ohio

Supreme Court. Petitioner has never filed an appeal of the trial court’s denial of his state post

conviction petition. He filed six requests for extension of time in which to file a Rule 26(B)

application and waited until April 16, 2010, before actually filing the Rule 26(B) application. 

Petitioner followed this procedure even though the Public Defender had advised him in a letter dated

April 25, 2009, of the proper procedure for filing a delayed Rule 26(B) application. See Exhibit 33

to Motion to Dismiss. That Rule 26(B) application was denied as untimely by the state court. 

Finally, Petitioner waited eight months after the last state court ruling, see Exhibit 53 to Motion to

Dismiss, before filing the petition for a writ of habeas corpus on November 2, 2011. Under these

circumstances, Petitioner has simply not established that the equitable tolling of the statute of

limitations is warranted in this case.

Petitioner again argues that, on October 22, 2009, he filed a timely Rule 26(B) application

which the appellate court improperly construed as a letter, thereby interfering with his ability to

timely file his habeas corpus petition. See 28 U.S.C. § 2244(d)(1)(B). This Court disagrees. The

state appellate court has already rejected this argument, see Exhibit 32 to Motion to Dismiss, and the

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factual finding made in that rejection must be presumed to be correct. 28 U.S.C. § 2254(e). 

Moreover, this Court has reviewed the document referred to by Petitioner, Exhibit 26 to Motion to

Dismiss, and also concludes that the filing did not reasonably notify the state court that the filing was

intended to serve as a Rule 26(B) application. 

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the

foregoing reasons, and for the reasons detailed in the Magistrate Judge’s Report and

Recommendation, Petitioner’s Objections are OVERRULED. 

The Report and Recommendation (Doc. 7) is ADOPTED AND AFFIRMED.

Respondent’s Motion to Dismiss (Doc. 5) is GRANTED. This action is hereby

DISMISSED as untimely. The Clerk is DIRECTED to enter FINAL JUDGMENT.

Petitioner has requested a certificate of appealability. Where, as here, the habeas corpus

petition is denied on procedural grounds, a certificate of appealability “should issue when the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a

valid claim of the denial of a constitutional right and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). Petitioner has failed to establish that reasonable jurists would debate whether the

district court was correct in its procedural ruling. Petitioner’s request for a certificate of

appealability is therefore DENIED. 

Date: September 11, 2012 s/James L. Graham 

 James L. Graham

 United States District Judge

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